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TITLE OF BILL : An act to amend the vehicle and traffic law, in relation to persons authorized to withdraw blood

PURPOSE : To remove a conflict between current medical practice and a statutory requirement of Physician supervision of blood draws.

SUMMARY OF PROVISIONS : Section 1. Removes the requirement that a Physician supervise the withdrawal of blood from an intoxicated driver and lists the persons authorized to withdraw blood.

JUSTIFICATION : All too often, intoxicated drivers who are involved in motor vehicle collisions escape prosecution. If a police officer requests that medical personnel draw blood to test for intoxication after a collision, this evidence is suppressed unless a physician is present to supervise the procedure. This requirement is overly restrictive and impedes the ability of police and prosecutors to enforce laws against drunk or drugged driving. The medical community allows trained medical personnel to routinely withdraw blood from individuals without the direction and supervision of a physician, yet the VTL does not. The following are a few examples of the ongoing difficulty faced by law enforcement under current law.

Jack Shea, a double Olympic gold medalist and 91-year-old patriarch of a three-generation Olympic family, was killed on January 23, 2002 in a collision with a drunk driver. Although the driver was indicted for vehicular manslaughter, criminally negligent homicide, and driving while intoxicated, ultimately the district attorney could not present proof of the driver's blood alcohol level. The blood was drawn at Adirondack Medical Center, a small regional clinic where both men were brought for treatment after the crash. No doctor was on duty to supervise the drawing of the blood, only a physician's assistant. As Jack Shea was the more severely injured of the two men and in need of immediate medical attention, both the physician's assistant and the registered nurse at the clinic were occupied with treating him. When the police officer requested that blood be drawn from the driver, both the physician's assistant and the nurse directed an advanced emergency medical technician to draw the blood. The driver consented to the blood test, which showed a blood alcohol level of .15, and the physician's assistant later testified that there was no danger to the drive. in withdrawing the blood. Nonetheless, in October 2002, the judge in the case ruled that the blood-alcohol test was illegally administered because it was not supervised by a physician. As a result, the District Attorney was unable to use the blood as evidence and had to dismiss the charges. Although the District Attorney appealed the ruling, the appellate court felt compelled by the statute to uphold the suppression of the evidence. However, the Judges called on the legislature to amend the statute to remedy what they saw as an unnecessary restriction in the law. (People v Reynolds, 307 A.D.2nd 391 (3rd Dept. 2003).

A defendant in Sullivan County escaped a felony drinking while driving conviction because it could not be shown that a doctor had either directly or indirectly supervised the drawing of blood for an alcohol test. As reported by John Caher in the New York Law Journal on July 1, 2004, the Court revisited the admissibility of the blood draw after the conviction and then suppressed the evidence, overturned the conviction and dismissed the indictment. The technologist who drew the blood testified that she had never discussed the matter with a doctor, that there was no paperwork indicating he was ultimately in charge of the blood draw, and that she merely assumed that standard procedures were being followed. The Court ruled according to the established interpretation of the statute, which requires direct supervision by a physician, rather than simple adherence to standard procedures.

The defendant's attorney, Mark J. Sherman, said that while the case does not break new ground, it does reflect a disconnect between modem medical practice and the requirements of the Vehicle and Traffic Law a disconnect that DWI defendants can sometimes use to their advantage. He said at present there is probably no medical need to have a doctor supervise the drawing of blood, yet the law requires it for law enforcement purposes. "At some point someone will ask the Legislature to take a look at current medical practice and compare it to the statute," he said. "Someone is going to stand up and say that either the statute has to bend or medical practice has to change. This decision may bring that one day closer."

On May 27, 2001 a defendant in Nassau County rammed his car into the back of a vehicle that was stopped at a red light, killing two men and injuring three others. An advanced emergency medical technician withdrew blood from the defendant in the emergency room. The Medical Director in charge of Medical Control at Nassau County Medical Center testified that the advanced emergency medical technician acted under a protocol that had been established by an Emergency Medicine Committee of thirty physicians. Yet, the Trial Court felt constrained to deny admission of the defendant's blood alcohol content because the doctor in the emergency room at that time had not specifically "directed" him to do so. The Court stated "I agree with you, Gallub (the advanced emergency medical technician who drew the blood) is probably more qualified than a registered professional nurse, probably, but that's not what the statute says." After the loss of this important evidence at trial, the defendant was only convicted of criminally negligent homicide.

A defendant in Dutchess County also exploited this glaring statutory omission. Robert Raphael, Jr. died on October 20, 2004, as a result of the actions of a drugged driver. The offender, who was injured, was to be transported to the nearest hospital, which was in the State of Connecticut. The arresting officer, unsure of the legal efficacy of attempting to get a blood test administered out of state, requested an advanced emergency medical technician to withdraw blood at the scene. The advanced emergency medical technician did so using accepted medical standards. The advanced emergency medical technician was also authorized to withdraw the blood under a general and continuous written authorization from the Connecticut hospital, a participant in the Hudson Valley Regional EMS Advanced Life Support Protocols. Following the statute as currently written, the Court indicated a belief that the blood test would be suppressed. The prosecutor had to accept a plea that resulted in local jail time for the defendant when clearly state prison would have been the appropriate sentence.

The Fourth Department has held that authorization by a registered nurse who did not personally observe the sample being taken is not in compliance with the statute, (People v. Ebner, 195 A.D.2d 1006, 600 N.Y.S2d 569). Similarly, in People v. Olmstead (233 A.D.2d 837, 649 N Y.S2d 624), the blood was drawn by a medical laboratory technician at the direction of a registered nurse, rather than a physician, also resulting in the suppression of the blood alcohol results (see also, People v. Pickard, 180 Misc.2d 942, 692 N Y.S2d 88, Iv. denied 94 NY.2d 865,704 NY.S2d 541; People v. Gertz, 189 Misc.2d 315,731 NY.S2d 326).

In response to this problem, which is not singular to New York, a number of states have enacted legislation that allows the legal standard to mirror the medical community's standard for the withdrawal of blood. LEGISLATIVE HISTORY : 2007-2008 Passed the Senate (S.5974-a/A.688-a)

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect on the first day of November next succeeding the date on which it shall have become a law.

Text

STATE OF NEW YORK
________________________________________________________________________
46
2009-2010 Regular Sessions
IN SENATE
(PREFILED)
January 7, 2009
___________

Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
printed to be committed to the Committee on Transportation
AN ACT to amend the vehicle and traffic law, in relation to persons
authorized to withdraw blood
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph 1 of paragraph (a) of subdivision 4 of section
1194 of the vehicle and traffic law, as amended by chapter 406 of the
laws of 1988, is amended to read as follows:
(1) At the request of a police officer, the following persons may
withdraw blood for the purpose of determining the alcoholic or drug
content therein INCLUDING, BUT NOT LIMITED TO: [(i)] a physician[,]; a
registered professional nurse [or] ; a registered physician's assistant;
[or (ii) under the supervision and at the direction of a physician:] a
medical laboratory technician or medical technologist as classified by
civil service; a phlebotomist; an advanced emergency medical technician
as certified by the department of health; [or] a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law; OR
OTHER QUALIFIED PERSONS. This limitation shall not apply to the taking
of a urine, saliva or breath specimen.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00946-01-9

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